General Overview of Mississippi Gun Laws

What Municipalities and Counties CAN and/or MUST Do

What Municipalities and Counties CANNOT Do

Preemption

Preemption Lawsuits Pursuant to Miss. Code Ann. § 45-9-53(5)

Special considerations

Relevant Mississippi Citations

Judge’s Orders Defining “courtroom”

Lowndes County Adoption of Judge’s Order

1.     General Overview of Mississippi Gun Laws

1. No registration of weapons except suppressors
2. No license required to own or purchase firearms
   1. Must obtain federal tax stamp for suppressors, short-barreled rifles & shotguns
3. No waiting period on the purchase of a firearm
4. No limit on number of firearm purchases
   1. Federal requirements for multiple acquisitions.
      1. ATF Form 3310.4 “Report of Multiple Sale or Other Disposition of Pistols and Revolvers” is to be used when someone purchases two or more handguns within five days of each other.
   2. No magazine capacity limits
   3. No roster of approved firearms
   4. No license needed to carry open or concealed in:
      1. Home
         1. 97-37-1(2) provides: “It shall not be a violation of this section for any person over the age of eighteen (18) years to carry a firearm or deadly weapon concealed within the confines of his own home or his place of business, or any real property associated with his home or business or within any motor vehicle.”
      2. Place of business

• Real property associated with home or business

1. Any vehicle
2. Purse, handbag, satchel, or similar bag or briefcase or fully enclosed case
   1. 45-9-101(24) provides: “No license shall be required under this section for a loaded or unloaded pistol or revolver carried in a purse, handbag, satchel, other similar bag or briefcase or fully enclosed case.”

2.     What Municipalities and Counties CAN and/or MUST Do

1. Can require citizens or public employees to be armed for personal or national defense, law enforcement, or another lawful purpose. Code Ann. § 45-9-53(1)(a).
2. Can regulate the discharge of a firearm within the jurisdictional limits. Miss. Code Ann. § 45-9-53(1)(b).
   1. Exceptions:
      1. If the area was annexed by the county or municipality after September 1, 1981, and is larger than:
         1. Ten acres for any shotgun, air rifle or air pistol, BB gun or bow and arrow.
         2. Fifty acres for any centerfire or rimfire rifle or pistol or a muzzle-loading rifle or pistol.
      2. Can regulate the use of property or location of businesses pursuant to fire code, zoning ordinances, or land-use regulations. Code Ann. § 45-9-53(1)(c).
         1. Cannot be a surreptitious gun regulation
      3. Can allow gun rallies and gun shows on municipal property including in public parks. March 21, 2014 Attorney General Opinion to Andrew Stuart, II, on behalf of City of Guntown.
      4. Enact ordinances regulating open or concealed carry possession in sensitive places and locations found in § 45-9-53(1)(f).
      5. Post signs in locations permitted by 45-9-53(1)(f) and § 45-9-53(4).

3.     What Municipalities and Counties CANNOT Do

1. Cannot limit firearm possession in public housing
   1. § 45-9-51(2): A public housing authority may not adopt any rule or regulation restricting a lessee or tenant from lawfully possessing or transporting firearms or ammunition within individual dwelling units.
2. Cannot bring a lawsuit against firearm or ammunition manufacturers, distributors, or federally licensed dealers for damages or any other relief caused by lawful weapons. This power is reserved to the Mississippi Attorney General by Miss. Code Ann. § 11-1-67.
   1. Exceptions are made for “breach of contract or warranty as to firearms or ammunition purchased by the political subdivision, or for injuries resulting from a firearm malfunction due to defects in materials or workmanship.”
   2. See also Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 et seq.
      1. Findings
         1. The PLCAA found that “Businesses . . . engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition . . .are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.” Congress declared that “The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.”
      2. Six exceptions to the PLCAA include an action for breach of contract or warranty and design or manufacturing defects.
   3. Cannot participate in gun buy backs except on limited terms
      1. Miss. Code Ann. § 45-9-53(6) requires that:
         1. Municipality must adopt ordinance authorizing the participation of the county or municipality, or participation by an officer or employee of the county or municipality in any program in which individuals are given a thing of value provided by another individual or other entity in exchange for surrendering a firearm to the county, municipality or other governmental body
         2. Ordinance must provide that firearm will be auctioned to FFL with proceeds to general operating fund
         3. If firearm cannot be sold after auction “may be disposed of in a manner that the body deems appropriate.”
      2. Seized weapons may be sold at auction
         1. Code Ann. § 97-37-3(2)(b) allows merchantable weapons forfeited due to conviction under § 97-37-1 (deadly weapons) to be sold at auction “with the proceeds from such sale at auction to be used to buy bulletproof vests for the seizing law enforcement agency.”
         2. See also Miss. Code Ann. § 41-29-177 and Miss. Code Ann. § 45-9-151 as well as October 5, 2012 Attorney General Opinion to Reynolds.

• Abandoned weapons may be disposed of like other abandoned property pursuant to Miss. Code Ann. § 21-39-21.
  1. See August 14, 2015 Attorney General Opinion to Brenton Carter, on behalf of City of Florence.

1. Cannot prohibit firearms in employee parking lots in private vehicles
   1. Miss. Code Ann. § 45-9-55 says that no public or private employer may establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area.
   2. Exception is made if:
      1. The vehicle is owned or leased by an employer and used by the employee in the course of his business.

• What happens if an employer violates this section?

4.    Preemption

1. General limitation
   51. Municipalities are generally prohibited from adopting “any ordinance that restricts the possession, carrying, transportation, sale, transfer or ownership of firearms or ammunition or their components.” Miss. Code Ann. § 45-9-51.
   52. “Unlike private property owners, however, the authority of custodians of public property to disallow a lawful activity on land controlled by them requires a case-by-case analysis of the authority of the public body or official under state law.” June 13, 2013 Attorney General Opinion to Sheriff Brad Lance.
2. Source of authority
   1. Miss. Code Ann. § 45-9-53 says “This section and Section 45-9-51 do not affect the authority that a county or municipality may have under another law:”
      1. So where does the municipality get the authority to limit possession and/or carry of a firearm?
      2. The Trapp opinion acknowledges there is no law that expressly authorizes municipalities to regulate the carrying of a firearm but finds that the Home Rule Statute, Miss. Code Ann. § 21-17-5, provides such authority and would constitute “another law” as referenced in Miss. Code Ann. § 49-5-51.
      3. See also September 18, 2014 Attorney General Opinion to David Ringer, on behalf of City of Florence stating “. . . we are unaware of any other authority under which a municipality can regulate the possession of firearms.”
      4. See also February 3, 2015 Attorney General Opinion to Colmon Mitchell, on behalf of City of Batesville: “. . . with regard to locations other than those listed in Section 45-9-53(1)(f), it appears that a county or municipality can only post signs prohibiting carrying of weapons by individuals who are otherwise illegally carrying either a concealed or openly carried weapon.”
   2. Posting signage is an exercise of state law and cannot be based on Home Rule.
      1. Trapp says in posting signs pursuant to Miss. Code Ann. § 45-9-101(13) a municipality “is acting pursuant to state law and not exercising its independent regulatory authority.”
   3. This means that signage can only be posted in the locations allowed by state law and that a municipality cannot look to its own authority to place signage.
3. Places a municipality may regulate
   1. “. . . the only places that a municipality may regulate the possession of firearms are those places and events listed in Section 45-9-53(1)(f). This remains our opinion, and we are unaware of any other authority under which a municipality can regulate the possession of firearms.”  September 18, 2014 Attorney General Opinion to David Ringer, on behalf of City of Florence, citing December 2, 2013 Attorney General Opinion to Wendell Trapp, on behalf of City of Corinth.
      1. Code Ann. § 45-9-53(f) identifies the following areas:
         1. Public park;
         2. Public meeting of a county, municipality, or other governmental body;
         3. Political rally, parade, or official political meeting; or
         4. Non-firearm-related school, college, or professional athletic event.
      2. But note, this requires a case-by-case evaluation. See Special Considerations section.
   2. Regulation of open carry limited
      1. “There are no Mississippi statutes that expressly grant the right to open carry and no statutes that address requirements, qualifications or limitations regarding open carrying of a firearm. With one exception [for educational property], there are no statutes that authorize signage or that purport to set out locations where open carry of a firearm is prohibited.” February 6, 2015 Attorney General Opinion to Haley Broom, on behalf of Harrison County Sheriff.
      2. “Thus, we find no authority for a municipality to restrict the open carrying of firearms by use of signs or any means other than the express and limited authority given by Section 45-9-53.” September 18, 2014 Attorney General Opinion to David Ringer, on behalf of City of Florence, citing MS AG Op., Trapp (Dec. 2, 2013).
   3. Regulation of “purse carry” (unlicensed concealed carry)
      1. “Purse carry” is for all intents and purposes treated the same as open carry because “purse carry” does not fall within the provisions of the concealed weapon license scheme.

5.     Preemption Lawsuits Pursuant to Miss. Code Ann. § 45-9-53(5)

1. Any citizen of this state, “regular” licensee, or “enhanced” licensee who is adversely affected by an ordinance or posted written notice adopted by a county or municipality may file a complaint with the Attorney General.
   1. The Attorney General has thirty days to investigate and render an opinion.
   2. The municipality has thirty days from receipt of the notice to cure the violation.
2. Lawsuit
   1. If the violation is not cured the complainant may proceed to suit in circuit court.
3. Damages
   1. If the complainant prevails he shall recover:
      1. A permanent injunction prohibiting the municipality from enforcing the ordinance or posted written notice.
      2. A civil fine not to exceed one thousand dollars ($1,000.00) from each county or municipal official under whose jurisdiction the violation occurred.
      3. All reasonable attorney’s fees and costs incurred by the party bringing the suit.
   2. The kicker
      1. Public funds may not be used to defend or reimburse officials who are found by the court to have violated this section.
   3. Affirmative defenses
      1. That the elected official:
         1. Did not vote in the affirmative for the adopted ordinance or posted written notice;
         2. Attempted to take recorded action to cure the violation; or
         3. Attempted to take recorded action to rescind the ordinance or remove the posted written notice.

6.    Special considerations

1. Courthouses
   1. There is no municipal authority to regulate carry of firearms in courthouses
      1. “. . . counties have no authority to regulate, independently of state law, firearm, possession in courthouses. February 6, 2015 Attorney General Opinion to Haley Broom, on behalf of Harrison County Sheriff.
      2. “Thus, with regard to restriction of firearms in courthouses and other sensitive places, it is our opinion that counties and municipalities are relegated to reliance on State statutes.” September 18, 2014 Attorney General Opinion to Sean Tindell, on behalf of City of Diamondhead.
   2. Concealed carry in courthouses
      1. Courthouses
         1. “Regular” licensees are prohibited from carrying in a courthouse. Code Ann. § 45-9-101(13).
         2. “Enhanced” licensees may not be prohibited from carrying in a courthouse but are prohibited from carrying a firearm in a courtroom during a judicial proceeding. Code Ann. § 97-37-7(2).

• Open carry in courthouses
  1. “Thus, we find no authority for a municipality to restrict the open carrying of firearms by use of signs or any means other than the express and limited authority given by Section 45-9-53.” September 18, 2014 Attorney General Opinion to David Ringer, on behalf of City of Florence, citing MS AG Op., Trapp (Dec. 2, 2013).

1. Courthouse security is the responsibility of the sheriff, not municipalities or counties. See Miss. Code Ann. Section 19-25-69 and February 14, 2003 Attorney General Opinion to Meadows.
   1. Is there no authority for sheriff to regulate open carry in a courthouse?
      1. Compare:
         1. February 6, 2015 Attorney General Opinion to Haley Broom, on behalf of Harrison County Sheriff states “we do not believe that a Sheriff has authority to regulate open carry of weapons in a courthouse. . . . the Sheriff has no authority to post signs regarding open carry in the courthouse.”
      2. With:
         1. June 13, 2013 opinion to Sheriff Brad Lance: “Thus, it is our opinion that the sheriff has the state-law authority, if he determines it reasonable and necessary to the security of the courthouse, to disallow the open carry of firearms in the courthouse.”
            1. This opinion did not decide decision of whether regulation is constitutional and noted official opinion does not provide immunity for violations of federal law or constitution.
            2. “Any regulation adopted by a state agency which restricts firearm possession on state property should be supported by similar findings, preferably placed in the administrative record.”
         2. Schools and Educational Property
            1. Miss. Code Ann. § 97-37-17 prohibits the carry of a firearm or deadly weapon on all educational property with the following exceptions:
               1. Vehicle carry by non-students
                  1. Must
                     1. Not be a student;
                     2. Within a motor vehicle; and

• Not brandish, exhibit or display the firearm in any careless, angry or threatening manner.

2. For school functions
3. By law enforcement

1. The Gun-Free School Zones Act, 18 U.S.C. § 922(q), provides generally that it is illegal to have a firearm within 1,000 feet of a school zone unless the firearm is:
   1. On private property not part of the school’s grounds; or
   2. Possessed pursuant to a state-issued permit issued following a background check; or
   3. Unloaded in a locked container within a motor vehicle;
   4. Being used for a school program; or
   5. Pursuant to a contract between the school and the person or his employer; or
   6. Unloaded and possessed while traversing the area to access public or private hunting lands.

• The GFSZA also makes it illegal to fire or attempt to fire a gun in a school zone, with certain exceptions.

7151. The Gun-Free Schools Act (GFSA) imposes a federal requirement on school districts to adopt zero-tolerance policies and minimum one-year expulsions from school for gun possession in exchange for federal funds for district schools. The GFSA was repealed and re-enacted as part of the “No Child Left Behind” Act (NCLBA) contained in 20 U.S.C. § 7151.  “The strict zero-tolerance policy associated with the GFSA was softened somewhat under the newer version by allowing states to permit the chief administering officer of a local educational agency to modify an expulsion for a student, in writing, on a case-by-case basis. Furthermore, the GFSA provides that a state may allow a local educational agency that has expelled a student from the student’s regular school setting to provide an alternative educational setting.”
7152. The conflict between state and federal law
      1. Only persons with enhanced license may carry on educational property, even if contained within a vehicle
         1. Example: Arrests for possession of shotguns at Ole Miss demonstration. http://bit.ly/1mVndTP
      2. Athletic events
         1. See discussion above about schools and educational property.
         2. Enhanced licensee carry can be prohibited from firearm-related events but not from non-firearm-related events.

• What about special stadium rules such as at collegiate stadiums?

1. Parks
   1. Licensed concealed carry
      1. Cannot prohibit enhanced licensees from carrying concealed firearm in public parks.
      2. Can prohibit “regular” licensees
         1. Mississippi Attorney General: “As a result of the amendment to Section 45-9-53(4) made by Senate Bill 2619 passed by the Mississippi Legislature during the 2015 session, a county or municipality may no longer use written notice provisions (signs) to prohibit firearms at public parks unless those signs also indicate that carrying a firearm is unauthorized only for license holders without a training endorsement.”
      3. Unlicensed carry of a firearm
         1. Cannot prohibit open carry. See Preemption discussion and preceding point for licensed concealed carry.
         2. Cannot prohibit “purse carry”
            1. Purse carry, as a special exception to the licensing scheme, is essentially treated the same as open carry.
         3. Government meetings
            1. Can prohibit “regular” licensees from carrying in government meetings (but not outside the time of the actual meeting) pursuant to Miss. Code Ann. § 45-9-53(f)(i).
            2. Cannot prohibit “enhanced” licensees because of Miss. Code Ann. § 97-37-7(2) (“shall also be authorized to carry weapons in . . . any location listed in subsection (13) of Section 45-9-101 . . . .”)

• Can prohibit open carry (and “purse carry”) in accordance with iss. Code Ann. § 45-9-53(f)(i) and constitutional requirements.

1. Shooting ranges
   1. Miss. Code Ann. § 17-25-15 says that:
      1. An established sport shooting range that is not in violation of a state law or an ordinance prior to the enactment of a new ordinance may continue in operation even if, at or after the time of the enactment of the new ordinance, the operation of the sport shooting range is not in compliance with the new ordinance.
      2. No new ordinance shall prohibit an established sport shooting range that is in existence on March 31, 2008, from repairing or expanding its facilities and membership.

7.     Relevant Mississippi Citations

12. MS Const. Art. 3, Sec. 12.
13. Code Ann. § 11-1-67
14. Code Ann. § 17-25-15
15. Code Ann. § 45-9-51
16. Code Ann. § 45-9-53
17. Code Ann. § 45-9-55
18. Code Ann. § 45-9-57
19. Code Ann. § 45-9-101
20. Code Ann. § 45-9-151
21. Code Ann. § 97-37-1
22. Code Ann. § 97-37-7
23. Code Ann. § 97-37-17